Mass. Decisions, 1-620 N.E.2d 535 N.E.2d 193, 404 Mass. 221, Com. v. Amir...
Copyright (c) West Publishing Co. 1993 No claim to original U.S. Govt. works.
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404 Mass. 221
COMMONWEALTH
v.
Gerald AMIRAULT.
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued Dec. 6, 1988.
Decided March 6, 1989.
Defendant was convicted in the Superior Court Department, Middlesex County,
Elizabeth J. Dolan, J., of indecent assault and battery on a child under the
age of 14, and rape of a child under the age of 16, and defendant appealed
from his convictions and from the denial of his renewed motion for new trial.
The Supreme Judicial Court, Hennessey, C.J., held that: (1) testimony
concerning the fresh complaint of one of the child victims was properly
admitted; (2) child victim's lapse of memory did not violate defendant's
confrontation rights; and (3) the videotaped testimony of a child witness was
properly admitted.
Affirmed.
1. CRIMINAL LAW k369.15
110k369.15 k. Evidence of other offenses to prove identity.
Mass. 1989.
Testimony of alleged child sexual abuse victims as to acts of abuse
committed by clown was properly admitted solely on issue of identification in
one of indictments; court instructed that testimony was produced at trial
that defendant dressed as clown and engaged in conduct alleged in one
indictment, that other testimony indicated that unnamed clown committed acts
alleged in another indictment, and that evidence of similar conduct was to be
considered only on issue of identity of unnamed clown and not for any other
purpose.
2. CRIMINAL LAW k366(6)
110k366(6) k. Length of time elapsed as affecting admissibility.
Mass. 1989.
Fresh complaint testimony of mother of child that child told mother that
while attending certain school, child had been sexually abused, was admissible
despite defendant's contention that complaint, made 18 months after the child
attended school, was neither prompt nor spontaneous; complaint was reasonably
delayed, as defendant threatened child, who was four years old, telling her
that he would kill all of her family if she told anyone.
3. CRIMINAL LAW k1169.5(2)
110k1169.5(2) k. Particular evidence or prosecutions.
Mass. 1989.
In prosecution for sexual abuse of children, even if it was error to admit
testimony of children as to presence of camera in room when acts were
committed, and testimony of pediatric gynecologist as to small hymenal scar on
one victim, judge's subsequent exclusion of evidence and curative instructions
were adequate to cure any prejudice.
4. INDICTMENT AND INFORMATION k121.4
210k121.4 k. Requisites and sufficiency of bill.
Mass. 1989.
In prosecution for sexual abuse of children, there was no error in denying
defendant's motion for further particulars, despite defendant's objection to
substitute bill's use of phrase "and/or" and use of word "object" rather than
more specific term for certain rape indictments; Commonwealth's bill of
particulars gave defendant reasonable knowledge of crimes charged, with
adequate notice to prepare his defense, and defendant was not surprised by
proof offered by Commonwealth at trial. Rules Crim.Proc., Rule 13(b), 43C
M.G.L.A.
5. INDICTMENT AND INFORMATION k121.1(1)
210k121.1(1) k. Nature, purpose, and function.
[See headnote text below]
5. INDICTMENT AND INFORMATION k121.1(7)
210k121.1(7) k. Evidentiary matters.
Mass. 1989.
Defendant in criminal proceeding is not entitled by motion for bill of
particulars to secure resume of evidence that Commonwealth intends to
introduce at trial, or to have such motion treated in all respects as if it
were set of interrogatories. Rules Crim.Proc., Rule 13(b), 43C M.G.L.A.
6. CRIMINAL LAW k662.7
110k662.7 k. Cross-examination and impeachment.
Mass. 1989.
In prosecution for sexual abuse of children, child witness' statement that
she did not remember, given in response to some of defense counsel's questions
on cross-examination, did not constitute denial of right to confrontation;
defendant had ample opportunity to cross-examine child, and defendant used
child's memory lapse and unresponsiveness to impeach her credibility.
U.S.C.A. Const.Amend. 6.
7. CRIMINAL LAW k394.1(2)
110k394.1(2) k. Wrongful mode of procurement.
Mass. 1989.
Testimony of child victims of sexual abuse was admissible despite
defendant's argument that testimony was tainted by, or product of, improper
interviews conducted by Department of Social Services, therapists, police, and
prosecutor's office; issue actually concerned credibility of testimony, and
judge properly left evaluation of credibility to jury.
8. CRIMINAL LAW k730(8)
110k730(8) k. Comments on evidence or witnesses.
Mass. 1989.
Although prosecutor, in closing argument, made improper reference to
defendant's postarrest silence, judge's instruction to jury to disregard
prosecutor's comment was sufficient to cure any prejudice, even though
instruction was not given until one day after closing arguments.
9. CRIMINAL LAW k730(7)
110k730(7) k. Matters not sustained by evidence.
Mass. 1989.
Even though prosecutor's comment in closing argument that theory advanced
by defendant's expert was not "any kind of recognized or accepted theory" went
beyond scope of evidence, judge's instruction to jury to disregard statement
"as there was no evidence or testimony offered by the Commonwealth that it is
not a recognized theory" removed any reasonable possibility of prejudice.
10. CRIMINAL LAW k730(7)
110k730(7) k. Matters not sustained by evidence.
Mass. 1989.
Even though prosecutor's comment in closing argument which suggested that
evidence had been presented by experts as to traits exhibited or conduct
engaged in by child abusers, when in fact no such evidence had been presented,
went beyond evidence, judge's jury instruction to disregard comment eliminated
any prejudicial effect arising out of prosecutor's statement.
11. CRIMINAL LAW k730(1)
110k730(1) k. In general.
Mass. 1989.
Even if prosecutor, in his closing argument, misstated law of common scheme
so as to shift burden of proof onto defendant, judge correctly instructed jury
that "evidence of common scheme is not to be used to rebut the testimony of
the defendant [and] defendant is under no duty or obligation to rebut any
evidence presented.".
12. WITNESSES k228
410k228 k. Mode of testifying in general.
Mass. 1989.
Videotaping of testimony of six-year-old sexual abuse victim and
presentation of tape to jury in open court at later date was proper procedure,
despite defendant's contention that judge failed to make finding of
"compelling need" for allowing videotaped testimony; defendant was present in
room when child's testimony was videotaped, and, although judge did not use
term "compelling need," judge's findings and circumstances of case indicated
that judge considered need to be compelling. M.G.L.A. c. 278, Sec. 16D.
13. WITNESSES k228
410k228 k. Mode of testifying in general.
Mass. 1989.
While, ideally, all persons present in room in which testimony of child
sexual abuse victim is being videotaped would be visible in videotape, failure
to show all persons is not fatal flaw to otherwise satisfactory videotape.
M.G.L.A. c. 278, Sec. 16D.
14. CRIMINAL LAW k641.12(2)
110k641.12(2) k. Presence of counsel and consultation.
[See headnote text below]
14. WITNESSES k228
410k228 k. Mode of testifying in general.
Mass. 1989.
In prosecution for sexual abuse of children, defendant's rights to fair
trial and effective assistance of counsel were not compromised by special
accommodations made for child witnesses, including allowing children to
testify from child-sized table and chair placed in front of jury box; judge
permitted defense counsel to confer with each other and with defendant and
then to return to witness with additional questions following conferences, and
judge explained special practices to jury to avoid any possible prejudice to
defendant. U.S.C.A. Const.Amend. 6.
15. CRIMINAL LAW k959
110k959 k. Hearing and rehearing in general.
Mass. 1989.
Defendant was not entitled to grant of renewed motion for new trial based
on juror misconduct, even though renewed motion revealed facts unknown to
court at initial hearing in which court held that defendant failed to show
partiality of juror in question; nothing in additional information offered by
defendant led to conclusion that juror was partial.
[404MASS222] Juliane Balliro, Boston, for defendant.
------------------------- Page 535 N.E.2d 195 follows --------------------------
Karen J. Kepler, Sp. Asst. Dist. Atty. (Margot Botsford, Asst. Dist. Atty.,
with her), for Com.
Before [404MASS221] HENNESSEY, C.J., and ABRAMS, NOLAN and LYNCH, JJ.
[404MASS222] HENNESSEY, Chief Justice.
The defendant was indicted for seven counts of indecent assault and battery
on a child under the age of fourteen, and for eight counts of rape of a child
under the age of sixteen. The fifteen indictments involve nine child
victims,[404MASS233] both female and male, aged four to eight years. A jury
found the defendant guilty on all fifteen counts.
The defendant was sentenced to serve concurrent terms of from thirty to
forty years at the Massachusetts Correctional Institution, Cedar Junction, on
each of the eight indictments charging rape, and to concurrent terms of from
eight to ten years on each of the seven indictments charging indecent assault
and battery.
A single justice of the Appeals Court affirmed the denial of the
defendant's motion
------------------------- Page 535 N.E.2d 196 follows --------------------------
to stay the execution of his sentence pending appeal, and ordered an
expedited appeal of the denial of the defendant's motion for a new trial on
the single issue that a juror in the case was biased. This court upheld the
Superior Court judge's denial of the defendant's motion for a new trial on
this issue. 399 Mass. 617, 506 N.E.2d 129 (1987).
The defendant later renewed his motion for a new trial based on additional
evidence regarding his allegation of juror misconduct. The Superior Court
judge denied the renewed motion.
The defendant now appeals from his convictions and from the denial of his
renewed motion for a new trial. This court transferred the case here on its
own motion. By reason of the foresight and skill of the trial judge, there
was no reversible error. We affirm.
The Commonwealth filed a motion to remand the case to the Superior Court
judge for further findings concerning the videotaped testimony of one of the
child witnesses. A single justice of this court denied that motion.
The defendant was convicted for the multiple sexual assaults of children
who attended the Fells Acres Day School (Fells Acres) in Malden. The
defendant, known as "Tooky," is the son of the school's owner and director,
Violet Amirault, known as "Miss Vi." The defendant worked at the school as a
bus driver, helped prepare lunches and snacks, and performed maintenance tasks
on the premises. The defendant's sister, Cheryl Amirault LeFave, known as
"Miss Cheryl," worked at Fells Acres as a teacher for the toddlers' class.
Fells Acres was in operation from 1982, until September, 1984, when the school
was closed.
[404MASS224] Classrooms at Fells Acres had as many as thirty children under
the supervision of one teacher. In warm months, most teachers took their
classes on field trips. Field trips included excursions to the schoolyard, to
parks, to Miss Vi's pool, and other recreational areas. All the classes,
except the toddlers' class, were often out of the building at the same time.
During field trips, children sometimes remained at the school with Miss
Cheryl, Miss Vi, or Tooky, due to ill health, bad behavior, late arrival, or
early departure. Four of the children who testified in this case were
occasionally left behind on field trips.
There was a regular nap time at Fells Acres after lunch, between 12:30 P.M.
and 2:30 p.m. The children slept on cots set up in the classrooms. Because
of overcrowding, children were often removed from their classroom and sent to
another less crowded room during nap time. Generally, those children were
called away by Miss Vi or Miss Cheryl.
Early in September, 1984, after Fells Acres was closed, a Fells Acres
parents' meeting was held at the Malden police station. Parents of five of
the children who testified in this case attended that meeting. The meeting
alerted parents to the symptoms of sexual abuse, and directed parents to
question their children about sexual abuse at Fells Acres.
The children's descriptions of the sexual abuse varied in some details but
were similar over-all. Each of the children stated that he or she was forced
to touch the defendant's penis, to lick food from his penis, or that the
defendant touched or put his penis in the child's vagina or rectum. Some of
the boys stated that the defendant had touched or kissed their penises. Some
children testified that Tooky inserted various objects into their vaginas or
rectums--a magic purple wand, a thermometer, a pencil, a stick, a knife, and a
fork.
Some of the children described the abuse as being perpetrated by a bad
clown. The bad clown made the children taste ice cream from his penis and
made them touch his penis. One child described the incidents in terms of
playing an elephant game at school, licking ice cream from the trunk of a pink
elephant. The children related that the incidents occurred in a [404MASS225]
magic or secret room. The magic room was described to be the bathroom on the
second floor of the school.
------------------------- Page 535 N.E.2d 197 follows --------------------------
Some children described seeing, or being photographed by a big camera with
wires, a red button, and pictures that came out of the camera. One child,
while at home, emerged naked from a closet, struck various poses and stated
that this was what she had to do at school.
The children stated that they were threatened by Tooky or Miss Vi that if
they told anyone about the incidents, that their parents, or family, would be
killed, or cut up in pieces, or that the children would be sent away. One
child described the killing of a bird, squirrel, and dog in his presence.
Another child said her wrist was cut and that blood came out. Some of the
children described a robot that threatened them, and told them not to tell
their parents. Another child described being blindfolded during the incidents.
The parents of the child witnesses testified about their children's
behavior while, or shortly after, attending Fells Acres. The children
complained and cried about the school; they complained of stomachaches,
headaches, pain in their genital areas, and bowel problems. They began
bedwetting, lost their appetites, had nightmares, used baby talk, became
fearful of lights, of men, and of being left alone. The children also
displayed sexually explicit behavior; some began masturbating. Two of the
boys tried to stick their tongues into their mothers' mouths, and one tried to
kiss his mother's chest.
The defendant testified at his trial and denied committing any acts of
sexual abuse on any of the children. Twenty-two teachers and teachers' aides,
full and part-time employees of Fells Acres, testified on behalf of the
defendant. Teachers testified that they never saw the defendant dressed as a
clown, never saw a robot at the school, never heard of the magic or secret
rooms. They testified that they were never restricted or denied access to any
rooms in the school, that they never lost track of the children in their care
for any length of time, never saw anything indicative of sexual abuse, and
that the defendant was well-liked by the children.
[404MASS226] Dr. Renee Brant, a child psychiatrist, testified that sexually
abused children often delay making disclosure about the abuse, or make gradual
disclosure, and frequently retract their disclosures. A child might not
disclose the abuse due to fear, guilt, lack of trust, threats of harm to the
child or the child's family, or loyalty to the abuser. Dr. Brant also
described behavior sexually abused children frequently display, both trauma
specific and trauma nonspecific. Trauma specific behaviors include sexualized
behavior such as striking sexual poses, exposing genital areas, inserting
objects into body cavities, and displaying age-inappropriate sexual
knowledge. Trauma nonspecific complaints include stomachaches, sleep
disturbances, aggressive behavior, and regression in the form of baby talk and
loss of toilet training skills.
Dr. Jean Emans, a pediatric gynecologist, examined five of the female
victims who testified in this case and made positive findings as to four of
them. One child had a small hymenal bump (caused by rubbing, touching,
irritation, or masturbation). Two suffered vulvitis (caused by irritation
such as rubbing, nylon tights, leotards, irritating soaps, or sexual abuse).
One child had a hymenal scar (extraordinarily rare in nonabused children) and
a healed anal fissure; another suffered a labial adhesion (caused by rubbing,
irritation, or sexual abuse).
Dr. Daniel Schuman, a psychiatrist, testified that sexualized behavior is
not trauma specific to sexual abuse and can be a memory of something the child
has seen or been exposed to, or the result of a severe emotional disturbance.
He also testified about his "positive reinforcement loop" theory to explain
false accusations of sexual abuse. He explained that children may reassure a
parent's fearful expectations to maintain an emotional bond, resulting in
reports of abuse that become increasingly magnified or exaggerated.
On appeal, the defendant challenges: (1) the admission of testimony
concerning a clown; (2) the admission of fresh complaint testimony; (3) the
denial of his motion for a mistrial based on improper admission of evidence
pertaining to use of a camera and
------------------------- Page 535 N.E.2d 198 follows --------------------------
an expert witness's testimony on hymenal scarring; (4) the denial of his
motion to dismiss based on variances [404MASS227] between the bill of
particulars and the substitute bill of particulars, and the evidence presented
at trial; (5) the denial of his motion to dismiss two indictments because of
inadequate cross-examination of a child witness; (6) the denial of his motion
to dismiss because of improper interviewing of the children; (7) the
prosecutor's closing argument; (8) the presentation of a child's testimony by
videotape; (9) the denial of his right to a fair trial because of the
procedure used by the judge in the examination of the child witnesses; and
(10) the denial of his renewed motion for a new trial on the grounds of juror
misconduct.
1. The Admission of Testimony Concerning a Clown.
[1] Five children, over defense counsel's objection, testified about a
clown and the clown's actions during the sexual assaults. The children
testified about a bad clown or a red clown at the school who hurt them, or
made them touch his penis. The defendant moved for a mistrial, and
alternatively moved to strike the testimony regarding the clown. The judge
denied the motion. On appeal, the defendant argues that the evidence
regarding a clown was improperly admitted as evidence of a common scheme.
The judge, however, allowed the jury to consider the testimony pertaining
to a clown solely on the issue of identification in one of the indictments and
so instructed the jury: "Testimony was produced at trial that the defendant
dressed as a clown at the school and engaged in conduct alleged in one
indictment while dressed as a clown. There was other testimony that an
unnamed clown committed acts alleged in another indictment.
"If you find that the Commonwealth has proved that the defendant dressed as
a clown or that while dressed as a clown committed the acts alleged in one
indictment and you find that this conduct has sufficiently similar
characteristics to the conduct on the unnamed clown, you may, but you need
not, infer that the defendant was the unnamed clown; however, you are
cautioned that this evidence of similar conduct is to be considered by you
only on the issue of identity of the unnamed clown and it may not be
considered by you for any other purpose."
[404MASS228] Evidence that a defendant previously had misbehaved,
indictably or not, is relevant as it relates to the subsidiary issue of
identity and is not offered to prove his guilt but rather to prove the
relevant subsidiary issue. Commonwealth v. Triplett, 398 Mass. 561, 562-563,
500 N.E.2d 262 (1986). See Commonwealth v. Helfant, 398 Mass. 214, 224, 496
N.E.2d 433 (1986) (evidence that defendant committed crimes unrelated to
offense is competent where evidence tends to show identity); Commonwealth v.
Lacy, 371 Mass. 363, 366, 358 N.E.2d 419 (1976) (defendant's prior acts
relevant to the question of assailant's identity). The judge properly
admitted the evidence, and explained its narrow and limited use to the jury.
2. The Admission of Fresh Complaint Testimony.
[2] The judge permitted witnesses to testify concerning the fresh
complaint of seven of the nine child witnesses in this case. The defendant
objects to the fresh complaint testimony from the mother of one of the
children. The child's mother testified that approximately eighteen months
after her daughter last attended Fells Acres, her daughter stated that a clown
put a pencil, a thermometer, and his "pee-pee" in her "bum-bum" and in her
"pee-pee." The defendant argues that the fresh complaint was neither prompt
nor spontaneous and therefore should have been excluded. We disagree.
There is no absolute rule of law as to the time within which a sexual
assault victim must make her first complaint for that complaint to be
admissible in evidence as a fresh complaint. Commonwealth v. Comtois, 399
Mass. 668, 673, 506 N.E.2d 503 (1987), citing Commonwealth v. Bedard, 6
Mass.App.Ct. 959, 959, 383 N.E.2d 546 (1978). "The determination whether
statements
------------------------- Page 535 N.E.2d 199 follows --------------------------
are sufficiently prompt to constitute fresh complaints rests within the sound
discretion of the trial judge. See Commonwealth v. Sherry, 386 Mass. 682,
691 [437 N.E.2d 224] (1982). The test is whether the victim's actions were
reasonable in the particular circumstances of the case. Id. Commonwealth v.
King, 387 Mass. 464, 473 [441 N.E.2d 248] (1982). Commonwealth v. McGrath,
364 Mass. 243, 247 [303 N.E.2d 108] (1973)." (Footnote omitted.)
Commonwealth v. Comtois, supra at 399 Mass. at 673, 506 N.E.2d 503. See
Commonwealth v. McDonough, 400 Mass. 639, 652-653, 511 N.E.2d 551 (1987).
[404MASS229] Courts have not insisted on great promptness for fresh
complaints in prosecutions involving child sexual abuse. Commonwealth v.
Comtois, supra at 399 Mass. at 672-673 n. 9, 506 N.E.2d 503 (complaint of
fourteen-year-old victim, approximately nine months after the last incident of
abuse, held admissible as fresh complaint). See Commonwealth v. Densten, 23
Mass.App.Ct. 981, 981-982, 503 N.E.2d 1337 (1987) (statements of nine-year-old
special needs boy made seventeen days after incident held admissible as fresh
complaint); Commonwealth v. Adams, 23 Mass.App.Ct. 534, 535-536, 503 N.E.2d
1315 (1987) (statements of nine-year-old victim to police, made four months
after first report of sexual assault held admissible as fresh complaint).
Because child sexual abusers are often related to or friends of the child
victim, and because the victim's silence has been induced by threats or
coercion, courts are flexible in applying the usual fresh complaint
strictures. Commonwealth v. Comtois, supra 399 Mass. at 673, 506 N.E.2d 503,
citing Commonwealth v. Brenner, 18 Mass.App.Ct. 930, 931-932, 465 N.E.2d 1229
(1984). The cases involving child sexual abuse constitute a factually
distinct branch of the fresh complaint doctrine that gives special
consideration to the natural fear, ignorance, and susceptibility to
intimidation that is unique to a young child's make-up. See Commonwealth v.
Lagacy, 23 Mass.App.Ct. 622, 626 n. 6, 504 N.E.2d 674 (1987). Cf. G.L. c.
277, Sec. 63 (running of statute of limitation for child rape begins when
victim reaches sixteen years of age or assault is reported to authorities,
whichever occurs earlier).
In this case, the victim was approximately four years old when she was
sexually abused. See Commonwealth v. Comtois, supra 399 Mass. at 674, 506
N.E.2d 503, citing Commonwealth v. Howard, 355 Mass. 526, 530, 246 N.E.2d 419
(1969). The defendant threatened the victim, telling her that he would kill
all of her family if she told anyone. See Commonwealth v. Comtois, supra 399
Mass. at 675, 506 N.E.2d 503 (where defendant had warned daughter that she
would get in trouble if she told anyone, victim made initial disclosure two
months later). The child's complaint was reasonably delayed, given the
exceptional circumstances of this case.
The defendant also objects to the admission of the fresh complaint
testimony on the ground that the child's statements result from a suggestive
and coercive interview. Although the [404MASS230] child made her statements
following an investigatory interview, she did not respond to any of the
interviewer's questions. In fact, the child made her complaint after the
interview had ended. In the automobile on the way home from the interview
with her parents, the child started to cry and said that she was afraid that
they would all be killed. When asked why by her mother, the child made her
initial disclosure of the abuse. It may be that a fresh complaint of child
sexual abuse is not possible until the child victim recognizes the nature of
the assault and is able to relate the incident. See Commonwealth v. White,
24 Mass.App.Ct. 936, 937, 508 N.E.2d 875 (1987) (statement by nine-year-old
child, during digital examination of vagina by physician, that examination
felt like what her father had done to her held admissible as fresh
complaint); People v. Clark, 193 Cal.App.3d 178, 182, 238 Cal.Rptr. 230
(1987) (five-year-old child's complaint made after she attended class on
molestation and learned the importance of reporting such incidents).
Furthermore, the judge submitted to the jury the question whether the
complaint was "fresh." The judge instructed the jury that they should
evaluate the weight
------------------------- Page 535 N.E.2d 200 follows --------------------------
of fresh complaint testimony by assessing the spontaneity, promptness, and
voluntariness of the child's statements. The judge stated: "If, upon
weighing these factors, you the jury determine that the evidence you heard
from witnesses ... was not fresh complaint of rape or indecent assault and
battery, then you must disregard that fresh complaint corroboration." The
judge's instructions were proper. See Commonwealth v. Densten, 23
Mass.App.Ct. 981, 982, 503 N.E.2d 1337 (1987) (judge gave limiting
instructions to the jury that it was for the jury to decide whether fresh
complaint evidence should be accepted).
We reject the defendant's arguments that the child's statements were
neither spontaneous nor prompt. In light of the circumstances of this case,
it was within the judge's discretion to admit the corroborative testimony of
the victim's mother.
3. The Denial of the Defendant's Motion for a Mistrial on the Grounds of
Improper Evidence of a Camera and an Expert Witness's Opinion Testimony on
Hymenal Scarring.
[3] At trial, six children testified about the presence of a camera in the
secret room, in the magic room, or in another house. [404MASS231] The
children described the camera as having wires and a red button. Two girls
testified that pictures came out of the camera. Some of the children
testified that the defendant photographed them naked or partially naked;
other children testified that Miss Cheryl or another person had taken
pictures. Defense counsel objected to the admission of this testimony. At
the close of the Commonwealth's case, the defendant moved for a mistrial, and
alternatively moved to strike all evidence relating to the photographing of
children and a camera. The judge denied the motion.
Dr. Emans, a pediatric gynecologist, testified with reference to one of the
child witnesses, that she had observed a small hymenal scar. The child
witness had testified that the defendant had inserted a knife into her anus.
Dr. Emans was permitted to testify that based on the proximity of the hymen to
the anus, which she estimated as one-half inch, an object inserted into the
child's anus could scar the hymen without penetrating her vagina. (FN1) The
defendant moved for a mistrial, and in the alternative moved to strike the
testimony. The judge denied the motion.
Assuming, as the defendant argues, that the evidence regarding a camera,
and the opinion testimony of Dr. Emans, was inadmissible at trial, (FN2) the
judge's subsequent exclusion of the evidence and curative instructions were
adequate. The judge [404MASS232] instructed the jury regarding the testimony
on a camera and photography: "[S]ome of the nine children who testified made
references to the presence of cameras, having had their pictures taken, or
other photographic devices. Testimony you have heard from these children
relative to cameras, photographic devices, or photographs, is stricken; and
you may not consider evidence relating to same against the defendant.... So
if you have made any particular notes relative to photographs, photographic
devices, or cameras, please note that you have been instructed now by the
Court that the same is stricken and shall not be considered as evidence in
this case."
------------------------- Page 535 N.E.2d 201 follows --------------------------
The judge repeated this instruction in the final jury instructions. With
reference to Dr. Emans's testimony on the hymenal scarring of one child, the
judge instructed the jury: "Regarding the testimony of ... Dr. Emans.... In
respect only to one of the children ... and concerning an opinion rendered as
to that child, wherein Dr. Emans gave an opinion as to whether hymenal
scarring observed ... was consistent with the insertion of an object into the
anal area of that child, that opinion or conclusion is stricken and may not be
considered by you as evidence in this case.... And if you had so made a note
of that, please indicate now in your notes that the same is stricken." The
judge stated further, in her final instructions to the jury: "When evidence
has been stricken, it has been stricken for all purposes.... Despite the fact
that you may recall the testimony or portions of it, you must follow the
instructions to disregard it and you cannot use it directly or indirectly by
drawing inferences from same against the defendant."
The decision to deny a mistrial lies within the sound discretion of the
judge. See Commonwealth v. Cunneen, 389 Mass. 216, 223, 449 N.E.2d 658
(1983); Commonwealth v. Simmonds, 386 Mass. 234, 241, 434 N.E.2d 1270
(1982). Here, the judge correctly relied on curative instructions as an
adequate means to correct any error and to remedy any prejudice to the
defendant. Commonwealth v. Helfant, 398 Mass. 214, 228-229, 496 N.E.2d 433
(1986) (court presumes jury followed judge's instructions). Commonwealth v.
Jackson, 384 Mass. 572, 579, 428 N.E.2d 289 (1981) (same).
[404MASS233] 4. The Denial of the Defendant's Motion to Dismiss Based on
Variances Between the Bill of Particulars and the Substitute Bill of
Particulars, and the Evidence Presented at Trial.
[4] Prior to trial, the judge granted portions of the defendant's motion
for a bill of particulars. The Commonwealth filed its original bill of
particulars, which pertained to indictments alleging offenses perpetrated
against nineteen victims. During trial, the Commonwealth filed an amended
bill of particulars focusing primarily on the indictments pertaining to the
nine children who actually testified. The defendant moved for further
particulars, objecting to the substitute bill's use of the phrase "and/or" and
use of the word "object" rather than a more specific term for certain rape
indictments. The defendant also moved to dismiss some of the indictments.
(FN3) The judge denied the motion. We conclude that there was no error.
[5] "A defendant in a criminal proceeding is not entitled by a motion for
a bill of particulars to secure a resume of the evidence that the Commonwealth
intends to introduce at the trial, or to have such motion treated in all
respects as if it were a set of interrogatories." Commonwealth v. Hayes, 311
Mass. 21, 25, 40 N.E.2d 27 (1942). A bill of particulars should give a
defendant reasonable notice of the nature and character of the crimes
charged. Id. at 24-25, 40 N.E.2d 27. (FN4) Here, the Commonwealth's bill
of particulars provided the defendant with such notice. The defendant had
reasonable knowledge of the crimes charged, with adequate [404MASS234] notice
to prepare his defense. See Commonwealth v. Tavares, 385 Mass. 140, 157, 430
N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967,
------------------------- Page 535 N.E.2d 202 follows --------------------------
73 L.Ed.2d 1356 (1982) (defendant charged with murder in the first degree was
not prejudiced by variance between bill of particulars, which suggested proof
of premeditation and felony-murder but not extreme atrocity or cruelty, and
proof at trial of extreme atrocity or cruelty, because victim's autopsy report
put defendant on notice). The defendant here was not surprised by the proof
offered by the Commonwealth at trial. Id.
5. The Denial of the Defendant's Motion to Dismiss Two Indictments Because
of Inadequate Cross-examination of a Child Witness.
[6] After one of the child witnesses testified, the defendant moved to
dismiss two indictments alleging rape and indecent assault and battery of the
child, arguing that inadequate cross-examination of the child violated his
rights to confrontation secured by the Sixth Amendment to the United States
Constitution. The record reveals that the child stated that she did not
remember in response to some of defense counsel's questions on
cross-examination. Defense counsel stated: "My problem is I still didn't get
an opportunity to cross-examine the witness. We got the little girl ... not
remembering things that she testified to here in the courtroom today.... I
haven't had a chance to cross-examine her. She doesn't remember." We reject
the defendant's argument and find no error.
The child's lapse of memory here is not comparable to a refusal to answer
questions. See Commonwealth v. Funches, 379 Mass. 283, 292, 397 N.E.2d 1097
(1979) (because key witness testified on direct and refused to answer
questions on cross-examination, direct testimony struck). Nor is this case
equivalent to a denial of the right to examine a witness. See Commonwealth
v. Johnson, 365 Mass. 534, 543-544, 313 N.E.2d 571 (1974) (violation of
defendant's right of confrontation to limit cross-examination because alleged
victim feared, or did not wish to answer, questions). See also Smith v.
Illinois, 390 U.S. 129, 131-132, 88 S.Ct. 748, 749-750, 19 L.Ed.2d 956 (1968)
(defense counsel not allowed to ask witness for name and address even though
witness admitted that the name he first gave was false).
[404MASS235] The defendant's confrontation rights were protected here,
because he had ample opportunity to cross-examine the child. See
Commonwealth v. Funches, supra, quoting Davis v. Alaska, 415 U.S. 308,
315-316, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974). See also United
States v. Infelice, 506 F.2d 1358, 1363 (7th Cir.1974), cert. denied, 419 U.S.
1107, 95 S.Ct. 778, 42 L.Ed.2d 802 (1975) (defendant entitled to test the
truth of a witness's testimony on direct examination). The defendant could
have used, and did use, (FN5) the child's memory lapse and unresponsiveness
to impeach her credibility. (FN6)
6. The Denial of the Defendant's Motion to Dismiss Because of Improper
Interviewing of the Children.
[7] The defendant filed a motion to dismiss or grant appropriate relief
pursuant to Mass.R.Crim.P. 13(c), 378 Mass. 871 (1979). The defendant argues
that the testimony of the child victims was tainted by, or the product of,
improper interviews conducted by the Department of Social Services,
therapists, the police, and the prosecutor's office. The judge denied the
defendant's motion.
There is ample evidence in this case that the children were interviewed by
multiple persons--parents, social workers, attorneys, therapists, police
officers, and other investigators. Despite the defendant's argument to the
contrary, we think the judge
------------------------- Page 535 N.E.2d 203 follows --------------------------
was warranted in concluding that the children's ability to relate, recall, and
recount their experiences independently was not so seriously undermined that
their testimony should have been excluded.
The defendant's argument actually concerns the credibility of the
children's testimony. The credibility of a witness focuses on both the
individual's ability and willingness to tell the truth. Commonwealth v.
Ianello, 401 Mass. 197, 202, 515 N.E.2d 1181 (1987). The [404MASS236] judge
properly left the evaluation of the credibility of witnesses to the jury.
Commonwealth v. Widrick, 392 Mass. 884, 889, 467 N.E.2d 1353 (1984) (judge
correctly denied defendant's motion for psychiatric examination to determine
child witnesses' credibility where defendant insisted they fabricated
accusations). Commonwealth v. Bohannon, 376 Mass. 90, 94, 378 N.E.2d 987
(1978) (evaluations of credibility are within exclusive province of trier of
fact), S.C., 385 Mass. 733, 434 N.E.2d 163 (1982). "Whether a witness
testifies truthfully or according to some fictional script is for the jury to
decide." Commonwealth v. Brusgulis, 398 Mass. 325, 331 n. 12, 496 N.E.2d 652
(1986).
7. The Prosecutor's Closing Argument.
The defendant challenges three aspects of the prosecutor's closing argument
and contends that the argument (a) improperly commented on the defendant's
postarrest silence, (b) suggested facts not in evidence, and (c) misstated the
law and facts so as to shift the burden of proof onto the defendant.
[8] a. Comment on postarrest silence. The defendant challenges the
propriety of the following statement by the prosecutor, during his closing
argument: "[Defense counsel] told you no one ever even asked the defendant a
question during the two years that this case was pending, no one bothered to
find out what he had to say. The prosecution wasn't interested in his side of
the story. But, what [defense counsel] neglected to tell you ladies and
gentlemen is that the Commonwealth is forbidden by law from approaching a
defendant and talking to him after he's been arrested. But, the law, ladies
and gentlemen, does not forbid a defendant from approaching the Commonwealth
to tell his side of the case, if he wants to; and I say to you, ladies and
gentlemen, that you have heard no evidence that the defendant ever tried to do
that in this case." Defense counsel clearly invited the prosecutor's
comments with remarks in his own closing argument. (FN7) Commonwealth v.
Earltop, 372 [404MASS237] Mass. 199, 206, 361 N.E.2d 220 (1977) (Hennessey,
C.J., concurring), citing Commonwealth v. Burnett, 371 Mass. 13, 19, 353
N.E.2d 665 (1976) (stating that this court has given modest recognition to the
"fight fire with fire" concept, but that a better course is to seek redress
from the judge).
The prosecutor's comments were, however, improper, because they violated
the defendant's right to remain silent after his arrest. See Commonwealth v.
Teixera, 396 Mass. 746, 752, 488 N.E.2d 775 (1986); Commonwealth v. Mahdi,
388 Mass. 679, 694-695, 448 N.E.2d 704 (1983); Commonwealth v. Haas, 373
Mass. 545, 560, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154
(1986). "[E]vidence of a criminal defendant's postarrest, post-Miranda
silence cannot be used for the substantive purpose of permitting an inference
of guilt." Commonwealth v. Mahdi, supra 388 Mass. at 694, 448 N.E.2d 704.
Defense counsel objected to the prosecutor's comments, and the judge
instructed the jury, saying: "The Commonwealth commented in closing that the
law forbids the Commonwealth from questioning a defendant after his arrest and
that nothing prevents [the defendant] from approaching
------------------------- Page 535 N.E.2d 204 follows --------------------------
the Commonwealth. You are instructed to simply disregard those statements
entirely from your consideration and do not engage in speculation as to what
might or might not have occurred or to engage in conjecture as to what the law
might or might not be in this regard. You are instructed to concentrate on
the facts presented within this courtroom at this trial and apply the law as
it's provided in these instructions."
The defendant argues, on appeal, that "[t]he grave nature of the
prosecutor's comment, the delay in the curative instruction and the absence of
overwhelming evidence of guilt" lead to the conclusion that the judge's
curative instruction was insufficient to vitiate the prejudice caused by the
remark. We disagree. The fact that the judge instructed the jury to
disregard the prosecutor's comment a day after the closing arguments does not
render the instruction ineffective. The closing arguments,[404MASS238] after
the three-month trial, were lengthy, and required that the judge's
instructions be given the following day. The judge instructed the jury before
and after the closing arguments that the arguments were not evidence.
Furthermore, the jurors were allowed to take written instructions into
deliberations, supplying a lasting reminder of the jury instructions and
judge's comments. The judge's instruction was sufficient to cure the
prosecutor's improper reference to the defendant's postarrest silence. See
United States v. Doran, 483 F.2d 369, 373-374 (1st Cir.1973), cert. denied,
416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974).
[9] b. Facts not in evidence. Defense counsel objects to two portions of
the prosecutor's closing argument which he contends made reference to facts
not in evidence. The first deals with Dr. Schuman's expert testimony and the
second deals with Dr. Emans's expert testimony.
The defendant objects to references in the prosecutor's closing argument to
Dr. Schuman's expert testimony. The prosecutor stated: "[Dr. Schuman's]
positive loop theory that he talked to you about is not any kind of recognized
or accepted theory.... Dr. [Schuman] is not qualified to deal with children;
... he does not have any expertise in sexual abuse."
A prosecutor may argue the evidence and reasonable inferences which might
be drawn from that evidence. Commonwealth v. Richenburg, 401 Mass. 663, 675,
518 N.E.2d 1143 (1988). Commonwealth v. Francis, 391 Mass. 369, 372, 461
N.E.2d 811 (1984). Here, however, the prosecutor's remarks appear to have
gone beyond the scope of the evidence. The evidence showed that Dr. Schuman
was not a child psychiatrist, that he had no formal training in child
psychiatry, that the one article he authored on the subject of sexual abuse
was based on his clinical experience in seven contested custody cases. The
prosecutor's statements that Dr. Schuman's theory "is not ... recognized or
accepted" went beyond the reasonable inferences which could be drawn from that
evidence.
In response to defense counsel's objection, the judge instructed the jury
"to disregard that statement as there was no evidence or testimony offered by
the Commonwealth that it is not a recognized theory." We conclude that the
judge's curative [404MASS239] instructions removed any reasonable possibility
of prejudice resulting from the prosecutor's improper remarks. Commonwealth
v. Weaver, 400 Mass. 612, 616, 511 N.E.2d 545 (1987).
[10] The defendant also objects to the prosecutor's characterization of
Dr. Emans's expert testimony: "You heard Dr. [Emans] describe how child
molesters often engage in something called vulva[r] intercourse which does not
involve penetration to the vagina and which would not show physical findings
in an examination." Although Dr. Emans did testify that sexually abused
children may have engaged in "vulvar coitus," without actual penetration, she
did not refer to the common practices of child molesters. The prosecutor's
comments went beyond the evidence. Commonwealth v. Johnson, 374 Mass. 453,
459, 373 N.E.2d 1121 (1978) (stating that prosecutor's argument cannot comment
on facts not in evidence). See Commonwealth v. Ryan, 8 Mass.App.Ct. 941,
941, 397 N.E.2d 1128 (1979) (where prosecutor stated that
------------------------- Page 535 N.E.2d 205 follows --------------------------
sperm is not always present in an ejaculation, without proper evidentiary
foundation).
The judge, however, gave a curative instruction to the jury after defense
counsel objected to the prosecutor's statements. "The Commonwealth made
certain references in closing argument relative to testimony by experts on the
use of objects by child abusers and the practice of vulva[r] intercourse by
child abusers. The statements as made would suggest that there was evidence
by experts presented as to traits exhibited or conduct engaged in by child
abusers. You are instructed to disregard those statements as there was no
evidence of the use of objects or vulva[r] intercourse either as a trait or
conduct engaged in by child abusers." "We shall not assume that jurors will
slight strong and precise instructions of the trial judge to disregard the
matters which have been withdrawn from their consideration." Commonwealth v.
Prendergast, 385 Mass. 625, 631, 433 N.E.2d 438 (1982), quoting Commonwealth
v. Gordon, 356 Mass. 598, 604, 254 N.E.2d 901 (1970). The judge's instruction
eliminated any prejudicial effect arising out of the prosecutor's statement.
See Commonwealth v. Borodine, 371 Mass. 1, 9, 353 N.E.2d 649 (1976), cert.
denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977) (judge's
instructions to jury adequately protected defendant's rights); Commonwealth
v. Stone, 366 Mass. [404MASS240] 506, 515, 320 N.E.2d 888 (1974) (prosecutor's
comments in closing argument about facts not in evidence were not prejudicial,
particularly in view of limiting instructions).
[11] c. Burden of proof. The defendant argues that the prosecutor, in
his closing argument, misstated the law of common scheme so as to shift the
burden of proof onto the defendant. The prosecutor stated: "The Court will
tell you in substance that if you find that the defendant was engaged in a
common scheme or plan abusing these children, then you can use their testimony
to corroborate each other and to rebut the defense position that nothing
happened. That instruction is given to you, ladies and gentlemen, because it
is the law, and you should, and must, apply it.
" ...
"But [the defendant] was unable to point to one single thing in the whole
world that would account for why all these children and parents have turned
against him."
A prosecutor cannot comment on a defendant's failure to contradict
testimony and cannot make statements that shift the burden of proof from the
Commonwealth to the defendant. See Commonwealth v. Sherick, 23 Mass.App.Ct.
338, 343-346, 502 N.E.2d 156, S.C., 401 Mass. 302, 516 N.E.2d 157 (1987).
The judge correctly instructed the jury that "evidence of common scheme is not
to be used to rebut the testimony of the defendant. The defendant is under no
duty or obligation to rebut any evidence presented. It can be used, if at
all, to corroborate the children's testimony." We are unwilling to assume
that the jury did not heed those instructions. See Commonwealth v.
Errington, 390 Mass. 875, 882, 460 N.E.2d 598 (1984), citing Commonwealth v.
Jackson, 384 Mass. 572, 579, 428 N.E.2d 289 (1981) and Commonwealth v. Leno,
374 Mass. 716, 719, 374 N.E.2d 572 (1978).
8. The Videotaped Testimony of a Child Witness.
[12] At trial, one child victim, six years old at the time of trial,
testified in the judge's chambers in the presence of the judge, the defendant,
and counsel. The judge found by a preponderance of evidence that testifying
in open court would produce such trauma as would warrant use of an alternative
testimonial procedure. The child's testimony was recorded on videotape and
shown to the jury in open court at a later date.
[404MASS241] After this case was tried, this court held G.L. c. 278, Sec.
16D, which allows the presentation of a sexually abused child's testimony by
videotape or simultaneous transmission, to be unconstitutional to the extent
that it violated a defendant's right to confrontation by allowing a child
witness to testify outside the physical presence of the defendant.
Commonwealth v. Bergstrom,
------------------------- Page 535 N.E.2d 206 follows --------------------------
02 Mass. 534, 547, 524 N.E.2d 366 (1988). This court also held that, in
instances where testimony is videotaped outside the presence of the jury, the
Commonwealth must establish a compelling need by showing that the procedure is
necessary to avoid severe and long lasting emotional trauma to the child.
Id. at 550-551, 524 N.E.2d 366.
Unlike Bergstrom, the defendant here was present in the room when the
child's testimony was videotaped. The defendant's challenge is that the judge
failed to make a finding of "compelling need" before allowing the videotaped
testimony. (FN8) Although the judge did not use the term "compelling need,"
it is clear to us, from the judge's findings and in light of all the
circumstances, that the judge considered the need to be compelling.
Three witnesses testified regarding the presentation of the child's
testimony by videotape: the child's mother, the child's therapist, and a
pediatrician. The child's mother testified that her son was reluctant to talk
about Fells Acres, and that he reacted to the topic by holding his knees up,
covering his eyes, clenching his fists, and grinding his teeth. The child's
mother also testified that when she described the big courtroom and the
smaller alternative room to her son, he stated that he would prefer the little
room because of the fewer number of people. She testified further that her
son "couldn't deal with" any of the practice questions in the courtroom; the
child responded to questions by getting up, walking around the room, trying to
change the subject, and putting his head on the table. The [404MASS242]
child's therapist, John Langfitt, met with him on a weekly basis for eighteen
sessions. Langfitt testified that the child became more anxious, concerned,
and aggressive as he prepared to testify in court. The child's anxiety abated
after he expressed to Langfitt his desire to testify in the little room, and
Langfitt said he would do what he could. Additionally, Dr. Eli Newberger, a
pediatrician, had testified as an expert witness that he believed there was a
strong likelihood that emotional harm would ensue to children who testified at
trial in the courtroom. There was ample evidence of a compelling need to use
videotaped testimony because of the severe and long lasting emotional trauma
to this child if made to testify in open court. See Bergstrom, supra at
550-551, 524 N.E.2d 366.
[13] We stated in Bergstrom that, "in constitutional terms, a videotape
should be required to convey to the jury ... the totality of the circumstances
involved in the giving of testimony." Id. at 549 n. 16, 524 N.E.2d 366.
The defendant argues that the videotape was deficient because only the child,
the child's mother, and questioning attorney were visible. Also present in
the room, but not visible on the videotape, were the defendant, opposing
counsel, the judge, the court reporter, and a court officer. Ideally, all
persons present in the room during the taping would be visible in the
videotape. (FN9) It is not, however, a fatal flaw to [404MASS243] an an
otherwise satisfactory videotape.
------------------------- Page 535 N.E.2d 207 follows --------------------------
See Bergstrom, supra at 549, 524 N.E.2d 366 (criticizing videotape for poor
color, poor sound, distracting background noises, obstructed view of the child
witness, and disembodied voices).
9. The Defendant's Rights to a Fair Trial and Effective Assistance of
Counsel.
[14] At trial, the judge allowed the child witnesses to testify from a
child-sized table and chair placed in front of the jury box. The judge and
questioning attorneys sat around the table. The defendant sat at counsel
table. The child was allowed to bring a toy into the courtroom and had a
parent sit behind him or her. The judge instructed the attorneys to make
objections quietly into a microphone during a child's testimony. The judge
ruled on the objections immediately and heard arguments based on the
objections after the testimony.
On appeal, the defendant makes a broad objection to the inability of
counsel effectively to register valid objections and the prejudicial nature of
the courtroom set-up, and argues that he was thereby deprived of his rights to
effective assistance of counsel and to a fair trial. The defendant cites one
case which is wholly inapplicable. We find no error.
A judge is afforded wide discretion in fashioning procedures and modifying
standard trial practices to accommodate the special needs of child witnesses.
See Commonwealth v. Bergstrom, 402 Mass. 534, 553-554, 524 N.E.2d 366 (1988)
(stating that measures should be taken to reduce the adverse impact of
testifying on child witnesses); Commonwealth v. Brusgulis, 398 Mass. 325,
332, 496 N.E.2d 652 (1986). We have recognized the plight of child sexual
abuse victims, and the difficulties a particular child may face in trying to
testify in a traditional courtroom setting. Bergstrom, supra 402 Mass. at
552, 524 N.E.2d 366. "[A] judge may require that the environment in which a
witness is to give testimony may be made less formal and intimidating." Id.
at 553, 524 N.E.2d 366.
The judge here protected the child witnesses to the extent possible while
also safeguarding the defendant's rights. The judge permitted defense counsel
to confer with each other and with the defendant and then to return to the
witness with additional questions following the conferences. Furthermore, the
[404MASS244] judge explained the special practices to the jury to avoid any
possible prejudice to the defendant. The defendant's right to a fair trial
and assistance of counsel were not compromised.
10. The Defendant's Renewed Motion for a New Trial Based on Allegations of
Juror Misconduct.
[15] Shortly after the jury returned the guilty verdicts, the defendant's
attorneys received information that one of the jurors had been raped as a
teenager, and that her assailant had been sentenced to a prison term for the
rape. We have already affirmed the Superior Court judge's denial of the
defendant's original motion for a new trial on the ground of alleged juror
bias. 399 Mass. 617, 630-631, 506 N.E.2d 129 (1987). (FN10) The
defendant's renewed motion for a new trial based on juror misconduct revealed
facts unknown to the court at the initial hearing. The new information
includes the assailant's name, the address where the assault occurred, and
information about the subsequent trial and conviction of the assailant.
Defense counsel waived further hearing on the renewed motion and relied on
affidavits and memoranda of law.
We agree with the Superior Court judge's conclusion that the documents
submitted merely "address[ ] the prior event in the subject juror's life with
greater specificity than the original motion." We have already concluded,
after reviewing the judge's denial of the original motion for a new trial,
"that the judge's determination that the juror was impartial was not clearly
erroneous." Id. at 627, 506 N.E.2d 129.
------------------------- Page 535 N.E.2d 208. follows -------------------------
We find nothing in the additional information offered by the defendant that
affects that conclusion. The defendant has failed to show, through the
additional information submitted, "that the juror was actually prejudiced
against him." Id. The additional information merely establishes facts
pertaining to the sexual assault, and does not establish that the juror
deliberately concealed information from the court or the parties, or that she
was biased.
Judgments affirmed.
Order denying motion for new trial affirmed.
FN1. The doctor testified: "My opinion is that because of the proximity
between the anus and the vagina, that an object being inserted in that area
could touch the hymen on the way to trying to find the anus."
FN2. We assume, without deciding, that the evidence was inadmissible. There
is, however, support for admitting the evidence regarding a camera as well as
Dr. Emans's testimony. The testimony of six children concerning a camera may
have been relevant to prove a common plan or scheme by establishing a
particular way in which the abuse occurred. See Commonwealth v. Davis, 376
Mass. 777, 788, 384 N.E.2d 181 (1978). Dr. Emans's testimony may have been
admissible if the judge determined that it was accompanied by a proper
foundation, that it would be of assistance to the jury, and that it was not
based on conjecture. Commonwealth v. Francis, 390 Mass. 89, 98, 453 N.E.2d
1204 (1983). See Commonwealth v. Pikul, 400 Mass. 550, 554, 511 N.E.2d 336
(1987) (physicians allowed to testify that the bruises on child victim's ears
were consistent with the pinching of both her ears with extreme force and were
suggestive of forced oral sex).
FN3. Defense counsel stated: "[M]y primary concern is that this type of
language seems to me to suggest that the Government is prepared to argue
things alternatively with respect to the facts of the allegations. I mean,
how can it be that at this stage of the trial there's an 'and/or'. We heard
what these children had to testify to. It's not optional any longer, and I
don't believe the Government [should] be at its liberty to argue it
optionally, and I would like, again, what minimal assurances Bills of
Particulars are supposed to represent ... knowing that the Government is, in
fact, limited to that evidence that has been produced in connection with this
case and that they are now not going to argue things alternatively."
FN4. Rule 13(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass.
871 (1979), states that a defendant may request a "statement of such
particulars as may be necessary to give both the defendant and the court
reasonable notice of the crime charged, including time, place, manner, or
means."
FN5. Defense counsel, in his closing argument, pointed to the child's
inconsistent statements and said the child "was a very shy, unsure,
unresponsive child," and otherwise impeached her credibility.
FN6. The judge correctly stated to counsel: "One of the areas in
cross-examination that can come out and that can be a fair and arguable point
before a jury that this child testified and yet, within moments after
testifying on direct, on cross-examination couldn't remember what she
testified to. That goes directly to the credibility issue as far as the jury
is concerned as far as assessing the child's credibility."
FN7. In his closing argument, defense counsel stated: "Until this trial, for
the past two years, this defendant has barely been a person; he's been some
type of disembodied Tooky the child abuser. No one has ever asked him a
question. The only words ever said to him in connection with this case prior
to this trial are: Your rights; you are under arrest. You have the right to
remain silent. That's the only question or only words put to him during the
course of the almost two years that this matter has been pending."
FN8. The defendant's brief, filed before the Bergstrom decision, argued that
G.L. c. 278, Sec. 16D, was unconstitutional on numerous grounds. Having
already considered the constitutionality of the statute in Bergstrom, we now
focus on those issues the defendant raises in his reply brief, filed after the
Bergstrom decision was issued.
FN9. Because the judge in this case did not have the benefit of the Bergstrom
opinion, we will not hold her to stringent standards regarding the quality of
the videotape. We add that the judge's instructions to the jury before the
viewing of the videotaped testimony made clear to the jury who was present
during the video-taping. She instructed the jurors: "I will tell you now
that the taping procedure took place in my chambers, that it was set up in
there, and that present in chambers--you won't be able to see everyone on that
film as you would if they were in the courtroom--but I was present; the court
reporter was present; also for the Commonwealth the District Attorney, [the
prosecutor] was present on one portion of the questioning, and you'll see him
changing seats in there. And on behalf of the defense, [defense counsel].
The defendant was also present within the lobby. So that that is the number
of people, and we also had one court officer as well as a staff member. We
reduced the number of staff people so that there would be fewer people around
as a distraction, as far as the child was concerned. So that the testimony,
as far as he was concerned, it was preferable that it be done in a smaller
surrounding with fewer people around and not in the presence of having
fourteen people looking at him as he was testifying."
------------------------- Page 535 N.E.2d 208_ follows -------------------------
FN10. That decision chronicles the informant's telephone call, the
defendant's motion, and the subsequent in camera hearing at which the juror
testified. 399 Mass. 617, 618-624, 506 N.E.2d 129.
(
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